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Self-regulation offers room for growth, exploration and self-discovery for our media that is in a formative stage
The flurry of protests against the Online Media Operation Directives 2016, approved recently by the government, is viewed by most freedom of the press purists, activists and professionals as an appropriate response to our government’s ill-motivated and undemocratic move.

The directives call for registration of online news outlets (to be renewed annually). Broadly, in the spirit of the Constitutional provisions in Clause 19 (1), it imposes prohibition on content that undermines nationality, sovereignty, and indivisibility of Nepal, or good relations between federal units, or that jeopardizes harmonious relations subsisting among various castes, ethnicities, religions and denominations.

The directives also prohibit content that is seditious, or defamatory, or that causes contempt of court, or incites criminal offence; contents that are contrary to decent public behavior or morality; content that disrespects labor, or incites untouchability or gender discriminations; and content without authoritative sources, or that creates misconception, or adversely affects international relations.

It holds online portals responsible for publishing content without sources, provisions correction or retraction, and adherence to journalists’ code of conduct. Outlets that do not renew annually or do not adhere to the code are deprived of government incentives. It gives power to the Department of Information (DoI) and the Press Council Nepal (PCN) to monitor the media in order to assess compliance. Unregistered news portals, those not renewed and those that publish sensitive types of content listed above will be “obstructed”. Online news portals operated from abroad that do not comply with the directives will be taken down.

An aggrieved party can lodge a complaint against an outlet for redress and the respective outlet is required to publish a correction or apology on the same page that the story was originally published.

Some of the provisions make sense. But the expansive prohibitions relating to content were subject to criticism during the making of the constitution itself. Now, under pressure from media groups and activists, the government has agreed, and rightly, to review the directives. Yet criticism of the directives as a form of government censorship may come as a surprise to ordinary citizens who see many online news outlets as nothing more than chaotic, unruly and often wayward platforms.

Online news outlets, long subjected to the anomalous Electronic Transaction Act 2063, may need some kind of sane regulation so they can perform efficiently and responsibly but the manner in which the directives were developed and approved invites a long, hard look. Without clear definitions, restrictions remain vague, and past experiences throw in enough fear on how the directives will be carried out. The document is unequivocal on taking down or obstructing news portals through departmental action. It leaves no room for any judicial oversight or process.

The constitution guarantees no prior restraint and thanks to the lobbying efforts of our professionals, it even distinctively provides for “complete press freedom”. But the directives undermine this very principle.

As a democracy aspiring to practice complete press freedom, and responsibly, the bigger questions we should be asking are these: Is it time to start regulating online news media? Who, in fact, should regulate them? Why should they be regulated, to what end? And how should they be regulated?

The governments in transitional societies like ours with a polarized pluralist media landscape often display a weak capacity to regulate the media but that does not stop them from tinkering with regulatory frameworks. The flawed directives were hurried, in an arbitrary manner, with token inputs from professionals and media activists.

Many countries don’t regulate online news media and others have made failed attempts to do so. The rapid development on cyberspace makes regulations outdated in no time. For instance, how sensible is it to obstruct a foreign-based news portal when the internet provides easy ways to circumvent any blockage? The internet throws the law into disarray; it creates entirely new phenomena that cannot be governed satisfactorily by any current territorial law.

Rather than creating impractical regulations, many countries rely on ordinary legislation such as laws on privacy, harassment, decency and defamation. Thus far this is what we have been doing. The rise of social media and the surge of comments also mean that today internet offers opportunities for self-correction. The internet serves more as a public utility rather than a market-oriented corporation. It offers multiple viewpoints.

We are handicapped in some ways in not having any regulation, but in the medium term, it is better than having an objectionable regulation. In the long term, online news outlets will have to be regulated, carefully and systematically.

International practices offer at least four regulatory models: government or state regulation, self-regulation, co-regulation and independent regulation. The first, also known as “command and control” or “statutory” regulation, leaves room for state intervention, and is threat to press freedom. China, Singapore, Malaysia and Jordan are examples of it. In a self-regulatory model, the media outlets, their proprietors and journalists themselves develop, administer and enforce rules. Examples include New Zealand, Australia, Canada and the US. Co-regulation involves regulation by the media industry with some oversight or government endorsement. Independent regulation is free from both government and media control.

The PCN endorses the Journalists’ Code of Conduct, but as a statutory body, it is close to the state model of regulation. That is why it has largely failed to gain the trust and respect of those it purports to regulate.

The trend globally is toward self-regulation. A University of South Africa study in 2011 showed that 70 percent of the top 50 countries in the Reporters Without Borders and Freedom House press-freedom rankings practice self-regulation. The government plays the role of a facilitator.

Let the media make their own rules and enforce them. The PCN or a modified regulatory mechanism such as a Media Authority/Commission should adapt to the changes in the market and new technologies as well as the interests of today’s media consumers.

In the current regulatory regime, the government interest prevails. A shift to self-regulation will not only give media the opportunity to be accountable but also enable greater public role in news production and consumption process. After all, unlike traditional journalism where the audience had to adapt to news cycles, online media today is all about adapting to audience tastes and needs.

In self-regulation, the public is assumed to be discerning and active. However, in this model, business interests of media can trump public interest. It is not a perfect system, but as James Madison, the father of the US constitution, wrote, “some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press”.

Self-regulation offers room for growth, exploration and self-discovery for our media that is in a formative stage. It should ultimately pave way to independent regulation.

Stop the patchy, naive approach. In the new political order, regulations should go hand in hand with a fully defined reform initiative, based on industry and public surveys. Create a regulatory system that cuts across varied content and converged platforms. Polices are often made in the name of the public, but hardly with their involvement or consent. Self-regulation can ensure that members of the public will have a greater say in the news process since a sizeable portion of the regulatory board in self-regulation includes them as members.

Along these lines, rather than revise the directives, it might be more appropriate to refine and adopt the voluntary Journalists’ Code of Conduct (draft 2072) which does incorporate online media.

Our traditional attention deficit to public interest reflects in the absence of provisions on advertisement and entertainment and age appropriateness of content in our existing legislations. Fortunately, needs of audience and consumers prevail online.